Relief for Students Facing the H-1B/F-1 Cap-Gap

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The term “Cap-Gap” refers to the unique situation in which some foreign nationals find themselves as the result of the interplay between two different portions of the U.S. immigration laws, as described below. 

Understanding the Cap-Gap Problem

The first important part of the immigration law to understand is the H-1B Cap, which refers to the limit that Congress established on the number of foreign nationals who can receive new H-1B visas every fiscal year. Currently, the H-1B Cap is 65,000. (For additional information on the H-1B Cap, please see the articles under "H-1B Visas for Temporary Specialty Workers.")

The second relevant part of the immigration law is that a foreign national who is subject to the Cap cannot begin working until the next fiscal year begins. This occurs on October 1 of every year. 

These time frames create the unique “Cap-Gap” problem for foreign nationals who are in the U.S. at the end of their nonimmigrant, most likely F-1 status and who also are beneficiaries of H-1B petitions. Cap-Gap occurs when an F-1 visa holder is the beneficiary of an approved H-1B petition, but his/her F-1 status and work authorization (Optional Post Training or OPT) expire before October 1. This gap from the end of the F-1 status to the beginning of the H-1B status could create serious immigration consequences. 

For example, let’s say you are a Russian citizen and you are in the U.S.in F-1 status. Your F-1 status and work authorization expire on February 1, 2012. You are the beneficiary of an approved H-1B petition, but you cannot begin working until October 1, 2012. If you remain in the U.S., you will begin accruing unlawful presence on February 2, 2012. If you accrue more than 180 days of unlawful presence, you can be barred from reentering the U.S. after you depart, or incur other serious penalties (for more information on unlawful presence, please see our articles on "Three- and Ten-Year Time Bars (Inadmissibility) for Unlawful Presence").

Recognizing that this current scheme of laws puts F-1 students in an unfortunate situation, the U.S. Department of Homeland Security (DHS) issued an interim rule that allows some F-1 students to maintain lawful status and work authorization (OPT) while they wait for their H-1B status to kick in.

How Can I Take Advantage of H-1B Cap-Gap Relief?

To be eligible for Cap-Gap relief, your H-1B employer must file your H-1B petition (I-129 petition) with U.S. Citizenship and Immigration Services (USCIS) during the H-1B acceptance period (which begins April 1, 2012 and continues until the cap is reached) AND while your F-1 duration of status is still valid (which is sixty days past the completion of your studies/OPT). 

For example, if your status is valid until August 1, 2012, your employer must file your H-1B petition any time between April 1, 2012 and August 1, 2012 in order to make sure the application qualifies for Cap-Gap relief.

Once USCIS receives the H-1B petition, your Cap-Gap extension of status will kick in and continue until USCIS makes a decision on your H-1B. If USCIS approves your H-1B, your Cap-Gap relief will continue until the start date of your H-1B status, thereby effectively “filling the gap” between your F-1 status and future H-1B status.  (If USCIS does not approve your H-1B, you must depart the U.S. within 60 days of the day USCIS informs your employer of the denial.)

Important Cap-Gap Cautions

At the conclusion of your studies or OPT period, USCIS gives you a 60-day grace period to depart the United States. During this grace period, you can wrap up your personal affairs and arrange for transportation back to your home country.  If your employer submits your H-1B petition during your 60-day grace period, the Cap-Gap relief will extend your lawful status but NOT your work authorization. 

Additionally, if you have Cap-Gap relief, you may NOT travel during the relief period (the period between the expiration of your F-1/OPT and the beginning of your H-1B). If you travel, you will invalidate your Cap-Gap relief and you will be required to obtain an H-1B visa in your home country before you can enter the U.S. in H-1B status.

 

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